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Decisions of the Superior Courts of New South Wales, 1788-1899

In re Roach [1829] NSWSupC 20

imprisonment for debt, maintenance - groats

Supreme Court of New South Wales

Hearing, 28 March 1829

Source: Australian, 31 March 1829

 

HOW TO SETTLE A DEBT WITHOUT COSTS.

In the Supreme Court on Saturday, a debtor named Roach was brought up on his petition to be discharged, on the ground of non-payment by his creditor, of the weekly dollar (anglice "groats") awarded him by the Court.[1 ]  Mr. Rowe opposed the debtor's discharge, stating that the creditor, who resides in the country, had commissioned his agent in Sydney to make due weekly payment to the debtor of the said poor pittance, but the agent, through forgetfulness, or some other cause, neglected to send the dollar until Tuesday morning, the 24th instant, instead of Monday the 23d, when it was tendered to the deputy gaoler, who very properly refused to receive it.  Their Honors observed to the anti-petitioner's Attorney, that his client had no more right to starve the petitioner for one day, than for one week, and accordingly ordered the poor debtor to be discharged from custody forthwith.

 

Notes

[1 ] This was an statutory principle of English debt recovery law, enshrined in the law of New South Wales from 1788 onwards.  Imprisoned debtors were entitled to be maintained by their creditors, and to discharge if the maintenance were not paid.  See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, p. 182.

See Sydney Gazette, 30 June 1829: imprisoned debtor applies for groats and discovered to be owed £1000 on instalments for the sale of his farms.  Groats refused.  See also Sydney Gazette, 15 December 1829, applicant for groats claimed to have a house worth £200.

See also Anonymous (No 1) 1829, for the effect of non-payment of groats on liability under a promissory note; and In re Clegg, 1829, on the imprisoned debtors' campaign for an insolvency Act.  It was claimed in the Sydney Gazette, 22 September, 8 December 1829, that some imprisoned debtors lived luxuriously while in gaol.

In 1830, an order was issued that all persons in the Sydney gaol, except debtors, were to be put in gaol clothing.  Justice Dowling said that all orders concerning gaol management were under the control of the Supreme Court, and that he had not heard of this order.  The assumption was that debtors were, and would continue to be, entitled to wear their own clothes in gaol: see Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 23.

Published by the Division of Law, Macquarie University